Five Years After Lawrence: Decriminalizing Gay People

Many people probably don’t recall much, if anything, about June 26, 2003, but I recall a great deal. That’s because it’s the day on which the Supreme Court issued one of its most important rulings in the area of individual rights and human dignity. In Lawrence v. Texas, a sharply divided Court struck down a Texas state law that prohibited consensual, private sex between adults of the same gender, a law that essentially made criminals out of gay men and lesbians. Five justices held that the law was an improper intrusion on the right to liberty guaranteed to everyone by the Constitution, effectively invalidating all state laws that invade the home to prohibit so-called sodomy.

Five years later, I can still recall vividly the absolute joy and elation that I felt learning that these pernicious laws were no more. The Court’s ruling meant not only that these laws could no longer be used to intrude into a realm of personal conduct in which government has no place, but also that they could no longer be cited to deny gay people jobs or participation in any other aspect of human endeavor on the ground of criminality.

Justice Kennedy’s majority opinion was a ringing endorsement of constitutional liberty. According to Justice Kennedy:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

As news of the Court’s decision unfolded, it was equally wonderful to learn that the five-justice majority had also overturned the Court’s 1986 ruling in Bowers v. Hardwick, in which the Court, by a vote of 5-4, had upheld a Georgia anti-sodomy law under which Michael Hardwick had been arrested for having had sex in his own home with another man. Bowers was a strikingly anti-gay decision in substance and language and, like Plessy v. Ferguson, a low point in Supreme Court history and an instance of the Court’s abject failure to protect the constitutional rights of minorities. Justice Kennedy, writing for the Court in Lawrence, soundly declared that Bowers "was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent."

One of my law school classmates was Michael Hardwick’s original attorney. I accompanied her to the Supreme Court that day in March 1986 when Bowers was argued, and I commiserated with her when that terrible ruling came down several months later. She was the first person I called after learning that Bowers had been overturned, and we shared a long-delayed moment of joy.

And so June 26, 2003 is a day that I remember quite well. But as significant as the Lawrence ruling was, I am mindful that four justices did not join Justice Kennedy’s majority opinion. Justice Sandra Day O’Connor, who was part of the majority in Bowers (truly a low point in her judicial career as well), declined to join the majority in overruling that decision. She agreed, however, that the Texas "sodomy" law was unconstitutional, but only because it treated same-sex and opposite-sex couples differently.

Three justices dissented outright from the ruling in Lawrence: then-Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas. Scalia and Thomas are still on the bench today. The late Chief Justice Rehnquist has been replaced by the equally ultraconservative John Roberts, while Justice O’Connor has been replaced by the extreme right-wing Samuel Alito.

Counting the numbers, then, it’s very clear that the constitutional protection of the essential human dignity of gay men and lesbians is hanging by a slender thread on the Supreme Court. John McCain has praised Justice Scalia and has also promised to put more justices like Roberts and Alito on the Court, which should be a consideration for any voter who cares about gay rights and the future of the Supreme Court.